Maintenance is sometimes known in other states as Alimony or Spousal Support, in both amount and duration, may be agreed upon by the divorcing spouses. However, if they cannot agree, a Judge will decide.
While there are “Guidelines” in the governing statute recommending a framework for the court’s determination of maintenance, that maintenance determination is made on a case-by-case basis.
Courts may order the “paying spouse” to pay temporary maintenance to a lower-earning or unemployed “supported spouse” during the divorce proceedings. Courts might also order a longer-term maintenance obligation. In most cases, maintenance is seen as a form of transitional assistance to allow the supported spouse time to find a job or obtain training and education to improve job prospects and approach the lifestyle maintained during the marriage.
A maintenance award will depend on different factors, such as where a spouse is not working because he or she is caring for an infant or was a stay at home parent during the marriage. If a child is under 30 months, the court will not consider the stay at home parent “voluntarily underemployed” for purposes of imputing a lower-earning parent with more income than what is actually earned.
The Colorado courts, which consider all relevant factors, will often use the Guidelines formula based on income to calculate maintenance. If the paying spouse loses or quits a job during the divorce the Judge will look into reasons why and may make a choice based on what said spouse could afford if they still had the job. Each case will be evaluated by the courts individually and all factors will be considered. Long-term maintenance considers the supported spouse’s age, health, and financial resources, their earning capacity, the paying spouse’s ability to pay, the length of the marriage, and the standard of living established during the marriage. (See Colorado Statutes – Title 14 – Article 10 – Sections: 14-10-114, 14 -10 -117).
There are many arguments that can be made with respect to maintenance on both sides of the courtroom, and it is important to seek competent counsel to advise you of your rights if there is a claim of maintenance made (or to be made).
The Guidelines formula referred to above provides for a monthly payment of maintenance to the supported spouse of 40% of the paying spouse’s monthly adjusted gross income minus 50% of the supported spouse’s adjusted gross income, such that the supported spouse’s total income (between earnings and maintenance) does not exceed 40% of the total marital income. The Judge may, of course, deviate from this Guidelines suggestion, but would specify the reasons for that decision.
A court can also order maintenance for the “supported spouse” where the couple has a combined gross income exceeding $75,000 when the supported spouse lacks sufficient property to provide for reasonable needs and lacks the ability to become self-sufficient through appropriate employment, or is the custodian of a child under 30 months or whose condition or circumstances make it appropriate for the spouse to delay seeking employment. A court that makes such findings may award maintenance in whatever amount and for however long seems fair in its discretion.
Unless the divorcing couple has a written agreement providing that one or both permanently waives the right to seek changes to the alimony payments, a court may modify the duration or amount of the payments due when there is a material change in the parties’ circumstances.
Maintenance generally terminates when the supported spouse remarries, when either party dies, or when the term is up.
Maintenance payments are generally taxable to the supported spouse and tax-deductible by the paying spouse. However, there are significant tax implications—such as the “recapture” problem—that may be avoided with the assistance of competent counsel.